Tyche Asset Management Pty Ltd v Flyland Development Group Pty Ltd (No 2) [2021] NSWSC 1403

Tyche Asset Management Pty Ltd v Flyland Development Group Pty Ltd (No 2) [2021] NSWSC 1403

The Court was satisfied, from the solicitor's affidavit and the nature of the proceedings, that disclosure of Mr Fan's privilege affidavit created a real and appreciable risk of prosecution, including because the plaintiffs' evidence alleged deliberate, dishonest or fraudulent conduct and referred to a belief that Mr Fan had committed fraud. The Plaintiffs did not dispute that s 128A(6)(a) was met, no foreign law was asserted, and production was accepted as required in the interests of justice. Because the Court was satisfied on the material before it, it was not necessary to read the privilege affidavit. A certificate under s 128A of the Evidence Act 1995 (NSW) was granted.

Jurisdiction
Australia
Judgment Date
21 October 2021
Procedural Posture
Application for a Certificate Pursuant to Section 128 a of the Evidence Act 1995 (nsw) in Equity Duty List Proceedings / Procedural Ruling on Objection to Producing a Privilege Affidavit Made in Compliance With Ancillary Orders
Outcome
Certificate granted.
Legal Topics
['self Incrimination Privilege' 'section 128 a Certificate' 'privilege Affidavit' 'freezing Orders and Ancillary Disclosure Orders' 'real and Appreciable Risk of Prosecution']
['evidence' 'civil Procedure'] ['self Incrimination Privilege' 'section 128 a Certificate' 'privilege Affidavit' 'freezing Orders and Ancillary Disclosure Orders' 'real and Appreciable Risk of Prosecution']

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Procedural Posture

Application for a Certificate Pursuant to Section 128 a of the Evidence Act 1995 (nsw) in Equity Duty List Proceedings / Procedural Ruling on Objection to Producing a Privilege Affidavit Made in Compliance With Ancillary Orders

Legal Issues

  1. 1 ['Whether information disclosed in the privilege affidavit may tend to prove that Mr Fan committed an offence against or arising under Australian law.' 'Whether the information tended to prove an offence or civil penalty under foreign law.' 'Whether the interests of justice required the information to be disclosed.' 'Whether the Court was required to read the privilege affidavit before granting a certificate under section 128A of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The Court was satisfied, from the solicitor's affidavit and the nature of the proceedings, that disclosure of Mr Fan's privilege affidavit created a real and appreciable risk of prosecution, including because the plaintiffs' evidence alleged deliberate, dishonest or fraudulent conduct and referred to a belief that Mr Fan had committed fraud. The Plaintiffs did not dispute that s 128A(6)(a) was met, no foreign law was asserted, and production was accepted as required in the interests of justice. Because the Court was satisfied on the material before it, it was not necessary to read the privilege affidavit. A certificate under s 128A of the Evidence Act 1995 (NSW) was granted.

Court Disposition

Certificate granted.

Orders

  • ['Certificate pursuant to section 128A of the Evidence Act 1995 (NSW) given.']